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England and Wales Court of Appeal (Civil Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Smith, R (on the application of) v Secretary of State for Justice & Ors [2014] EWCA Civ 380 (01 April 2014) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2014/380.html Cite as: [2014] EWCA Civ 380 |
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ON APPEAL FROM the Administrative Court
Mr Justice Mostyn
CO/6463/2012
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE AIKENS
and
LORD JUSTICE TREACY
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The Queen (on the application of Solomon Smith) |
Appellant |
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- and - |
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Secretary of State for Justice G4S Care and Justice Services (UK) Limited Secretary of State for Health |
Respondents Interested Party |
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Mr Jonathan Hall (instructed by Treasury Solicitor) for the First Respondent
Mr Scott Matthewson (instructed by Berrymans Lace Mawer LLP) for the Second Respondent
Hearing date: Thursday 6th March 2014
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Crown Copyright ©
Lord Justice Treacy:
The Background to the Appeal
Legislative/Policy Background
"(1) A designated room that is used as accommodation for persons aged 18 years or over in the premises specified in paragraph (2) is not smoke-free.
(2) The specified premises are - … (c) prisons.
(3) In this regulation "designated room" means a bedroom or a room used only for smoking which – (a) has been designated in writing…; (b) has a ceiling and, except for doors and windows, is completely enclosed on all sides by solid, floor to ceiling walls; (c) does not have a ventilation system that ventilates into any other part of the premises…; (d) is clearly marked as a room in which smoking is permitted; and (e)…"
"The desirability of attaining a 100% smoke free prison estate in the future is acknowledged, but prison service policy for now is for prisoners aged 18 and over to be permitted to smoke in single cells or cells shared with other smokers.
Governors may introduce smoke-free landings and/or wings where appropriate and feasible, following consultation with staff and prisoners, but this must not undermine the general policy which permits prisoners over 18 to smoke in single cells or cells shared with smokers. "
i) Governors will designate all cells containing up to four persons as places where smoking is permissible when occupied only by smokers.ii) Cells in adult establishments must be certified in writing as rooms in which smoking may take place.
"Non-smokers must not be required to share a cell with smokers who are actively smoking. The status of a prisoner as a smoker or non-smoker should be established as part of reception procedures. Thereafter, arrangements must be made to place non-smokers and smokers in separate accommodation."
"The security, order and control of the establishment are of paramount importance. Many of the prisoners deprived of the ability to smoke during their stay in the prison may show hostile and uncooperative actions towards staff. The ability to retain the right to smoke in designated areas may contribute to counter-balance the effects of such predicted behavioural concerns. The existing legislation makes allowance for this provision."
"Smoking will not be permitted except in designated smoking cells and in exercise yards during designated exercise periods. Prisoners must be asked on reception whether they are a smoker or non-smoker. Non-smokers must not be required to share a cell with smokers who are actively smoking (PSI 09/2007, para 8, p.2)."
Evidence
The Appellant's Submissions
The Authorities
"69. The Court further points out that the adverse effects of environmental pollution must attain a certain minimum level if they are to fall within the scope of Art.8. The assessment of that minimum is relative and depends on all the circumstances of the case such as the intensity and duration of the nuisance, its physical or mental effects. The general environmental context should also be taken into account. There would be no arguable claim under Art.8 if the detriment complained of was negligible in comparison to the environmental hazards inherent to life in every modern city.
70. Thus, in order to fall under Art.8, complaints relating to environmental nuisances have to show, first, that there was an actual interference with the applicant's private sphere, and, secondly that a level of severity was attained."
"Whether or not the applicant prisoner can claim to be in analogous position will therefore depend on the subject matter of his complaint. In this case the applicant complains of different standards of healthcare being applied in prison. The court would observe that the European Prison Rules, the Committee for the Prevention of Torture (CPT) and the Domestic Prison Regulations themselves provide that the healthcare in prisons should be the same as that in the community. For the purposes of the present application, therefore the court is prepared to assume that prisoners can claim to be on the same footing as the community as regards the provision of healthcare…"
Conclusions
Lord Justice Aikens:
Lord Justice Maurice Kay:
On hearing counsel for the Appellant, for G4S and for the Secretary of State for Justice, it is ordered that:
1. The Appellant's claim for judicial review is dismissed.2. Permission to appeal be refused.
3. The Appellant to pay the Respondents' reasonable costs to be assessed if not agreed subject to section 11 of the Access to Justice Act 1999.
4. There be assessment of the Appellant's publicly funded costs.